California Penal Code Section 459 PC is the statute that defines and punishes a burglary crime. The crime involves entering a residential/ commercial structure or locked car intending to commit petty/ grand theft or a felony crime. If found guilty, possible punishment for this theft crime includes restitution, a jail/ prison sentence, and/or paying fines.

Burglary cases are not uncommon in California and the U.S. as a whole. Because of this widespread crime, you will need a criminal defense lawyer’s help to fight your charges. However, facing charges does not imply that you are guilty of burglary. You could be a victim of police entrapment, false accusations, or even mistaken identity. Your attorney could build strong defenses to cast doubts on the prosecution’s evidence.

At Darwish Law, we have an excellent track record. Our attorneys are experienced and have deep knowledge of California theft laws. We can handle all types of burglary cases for clients facing charges in Santa Ana, CA. In this article, learn the elements of burglary, sentencing options, legal defenses to the crime, and much more.

Legal Definition of Burglary Per California Law

As stated in the introduction, PC 459 of California law makes it a crime for you to enter a residential room/ building, commercial structure, or locked automobile with the intent of taking someone else’s property without their permission. In California, burglary is a wobbler crime; therefore, the prosecutor may charge you with either a felony or misdemeanor offense. The prosecuting attorney determines the specific charge after considering the circumstances surrounding your offense and your criminal history.

What the Prosecutor Must Prove in Court

Like other criminal offenses, the judge cannot convict you of a PC 459 violation before the prosecuting agency proves certain elements of the crime beyond a reasonable doubt. Elements of the crime of burglary include:

  • Entering a structure, a building, or a locked vehicle.
  • Having motive of committing a theft or felony offense when entering the building or locked vehicle.
  • One or more of the factors listed below are true:
  1. Value of property stolen surpasses that of $950.
  2. Building entered was non-commercial.
  3. Building was commercial, but was entered past business hours.

You are guilty of violating PC 459 when you enter the structure to commit theft - either petty or grand theft or a felony. The law does not require you to have accomplished committing theft or a felony to face any charges.

An example of a burglary is when you enter your employer’s office when working late as an employee in an office. You know that your boss keeps a collection of rare and pricey minerals on her office’s shelves, and you have intentions of stealing one. When in the office, the cleaner comes in abruptly. In this case, you never took your boss’s minerals even if you had a stealing motive. In this case, you are guilty of a burglary crime even if the actual stealing action didn’t happen.

Concerning the example given above, the court can only find you guilty if you had a motive to commit theft or a felony when entering the building. If your intent was not to steal or commit a felony when entering the room, you are not guilty of burglary. Check out an example of the scenario below:

You have separated from your spouse due to a misunderstanding. The two of you have decided to file for a divorce. Your wife then accuses you of spousal rape during the bitter divorce proceedings. When your wife is asleep at night, you enter the house you used to share via the back door, which is never locked.

When your spouse wakes up, she finds you there and calls the police. She accuses you of entering the house intending to rape her. Because rape wasn’t your motive upon entering, the prosecution cannot file burglary charges against you by stating you had an intent to commit a felony therein.

You could claim that you went back to the house to pick the possessions you left behind after you moved out. The prosecution could drop the charges if they lack an element of the burglary, which is intending to steal or commit a felony.

Sentencing, Penalties, and Punishment for Burglary

Punishment for California burglary is split into two categories first- and second-degree burglary. 

Punishment for First-Degree Burglary

Also known as residential burglary, first-degree burglary is charged as a California felony offense. Possible sentencing includes:

  • A fine not exceeding $10,000.
  • A two-, four-, or six-year prison sentence in state prison.
  • Formal/felony probation.

First-degree burglary also counts as a strike offense under the Three Strikes law.

Sentencing for Second-Degree Burglary

Second-degree burglary attracts lesser charges than first-degree burglary. The crime is a wobbler in California. That means that the prosecution could charge you with either a misdemeanor or felony. If accused of a felony, possible penalties are:

  • Paying a fine not exceeding $10,000.
  • Serving a 16-month, two-, or three-year jail sentence in county jail.
  • Felony probation.

If the prosecutor charges you with a commercial or misdemeanor second-degree burglary, upon conviction, possible penalties include:

  • Paying a fine not exceeding $1,000.
  • Serving a one-year jail sentence.
  • Summary/ misdemeanor probation.

Fighting a California Burglary Charge

While sentencing could be harsh, there are many defense strategies your attorney could present in court to fight your PC 459 charges. The prosecuting attorney bears the burden to prove beyond a reasonable doubt that you committed burglary. Below are common legal defenses you could use when facing burglary charges:

Police Misconduct

Police have stipulated timelines within which they should investigate crimes and submit findings to the prosecution. At times, law enforcement is rushing to solve a criminal case. In this case, short deadlines could compel them to do actions that violate your rights. These acts could be:

  • Forcing you to confess.
  • Performing searches without a warrant; hence, violating your Fourth Amendment rights.
  • During a line-up, the police ask leading questions of witnesses.
  • Fabricating and planting of evidence.

Your defense lawyer could file a Pitchess motion as to the investigator if police misconduct is evident. If the court grants you the motion, you could determine if other prior complaints from defendants exist. If you can prove that the particular investigation has entailed police misconduct before, the prosecuting agency or court at large could drop your charges. Also, if the case proceeds to trial, the jury could acquit you. 

Factual Innocence

Proving that you didn’t commit burglary is a sure-fire way to fight allegations against you. It is common for innocent people to face false arrests. These arrests could be due to:

  • Another person accusing you because they suffer a mental condition or are looking for revenge.
  • Misleading evidence. For instance, your fingerprints were located at the crime scene because you had accessed the crime scene for legitimate or innocent reasons.
  • Mistaken identity. The plaintiff could have described someone who looks like you or has a similar name to yours.

You want to hire a competent criminal lawyer even if you are innocent or when the prosecution’s proof looks damaging. A competent attorney knows how to cast doubts in the evidence the prosecution presents in court. Your lawyer could negotiate with the prosecution to lower your charges or even drop the case.

A Claim of Right/ Mistake of Fact

A claim of right, also known as a mistake of fact, is another legal defense to burglary connected to lack of intent. You cannot be considered guilty if:

  • You entered someone else's home to take an item that you believed belonged to you.
  • You had reasonable belief that you had permission to pick up the item.

Lack of Intent

In a California court, the prosecutor must prove various elements, ‘intent’ is among these. If you entered a building without intending to commit a felony or theft, the judge cannot not convict you of burglary.

Also, the timing of the intent is important. The law requires that you have the motive to commit an offense when entering the structure. You could not be convicted for a PC 459 violation if you formed the intent after entering the building.

Frequently Asked Questions (FAQs)

You may still have many questions regarding a burglary that you have not yet gotten answers to. Below are the most common questions defendants ask when facing California burglary charges:

What is the Difference Between First- And Second-degree Burglary in California?

First-degree California burglary involves entering a residence, while second-degree burglary involves entering any other building apart from a residence. The structure could be a commercial establishment after work hours or a locked car. At times, first-degree is called ‘residential burglary’ while second-degree burglary is also called ‘commercial burglary.’

What Does a “Residence” Imply?

A ‘residence’ could mean a variety of structures per California first-degree burglary laws. These structures include:

  • An inhabited hotel room
  • An inhabited room within a building
  • An inhabited trailer coach
  • An inhabited boat
  • An inhabited floating house
  • An inhabited home

The term ‘inhabited’ refers to a structure that someone else uses as a dwelling. However, the residents must be absent at the time of the PC 459 violation. The law requires that the people living in the inhabited residence not have moved out without intentions to return. But they could have left due to natural disasters.

What is the Difference Between Burglary and Shoplifting?

California Penal Code Section 459.5 says that shoplifting happens when you enter a commercial establishment that is open during normal working hours, intending to steal property valued at $950 or less. Simply put, shoplifting is a subcategory of burglary, which happens when you enter an open business with the motive of stealing merchandise worth $950 or less.

  • Can I Have my Burglary Charge Reduced to a Shoplifting One Under Proposition 47?

Before Proposition 47 was enacted in 2014, suspects could be convicted of felony second-degree burglary for acts that are now considered shoplifting. Currently, Prop 47 suspects found guilty of felony burglary may petition for resentencing to misdemeanor shoplifting. If the petition is considered, it could delete the stigma of a felony from your criminal history.

If you are eligible for resentencing from a prior conviction under Prop 47 (from felony burglary to shoplifting), you want to talk to your defense lawyer. The attorney you choose hould have experience representing defendants facing burglary charges and the Prop 47 re-sentencing provisions.

Is Burglary the Same Thing As “Breaking and Entering” In California?

Breaking and entering acts are not considered burglary under California law. You are required to break into a building to violate PC 459. You commit burglary only by entering an open building, business, or unlocked window. The law doesn't require that you trespass or use forced entry.

The rule’s exception is auto burglary. You are charged with auto burglary if the vehicle is locked. Therefore, you must break into the car to steal it or the property inside it. If the car is unlocked, you are not guilty of burglary nor auto burglary.

What Does It Mean to “Enter” a Structure Under Burglary Laws?

Entering a structure or building is the most important element of California burglary. You are guilty of burglary if a part of your body or an object you have control of enters beyond the building’s outer boundary. An ‘outer boundary’ is the area inside a building’s window screen, and balconies on the second or higher floor are meant to be entered from the inside.

Related Offenses to California PC 459

Several offenses are related to PC 459. The prosecutor could charge you with these together with burglary or in place of burglary. These crimes include:

Burglary of a Safe or Vault with Explosives, California Penal Code 464 PC

California Penal Code Section 464 punishes burglary of a vault or safe with explosives. You commit this crime when you use acetylene torches or explosives to open a vault, safe, or another secure place during the commission of a burglary. Since a PC 464 violation is more serious than a PC 459 violation, you are charged with a felony charge irrespective of whether the building is a commercial or residential establishment. If found guilty, you could be imprisoned for 3, 5, or 7 years in prison.

Trespass, California Penal Code 602 PC

Trespass is defined in Penal Code Section 602 as entering someone else’s property without their permission. While it may appear that you violate PC 602 anytime you commit PC 459, that is not always the case. With a trespass offense, the focus is on whether you had the owner’s permission to be present on their property. The law’s focus is on your state of mind.

If your motive is to commit a theft or a felony when you enter the building, it doesn't matter whether you trespassed to gain entry. If you face burglary charges and the prosecutor’s evidence regarding your motive to commit an offense is weak, you can negotiate to a lesser charge for trespass. The prosecution could also file the crime as a felony aggravated trespass under Penal Code Section 601. If you enter the building within 30 days after threatening its occupants or owner, you may be charged with PC 601.

Robbery, California Penal Code 211 PC

California Penal Code Section 211 defines robbery as the act of taking someone else’s property from their immediate presence by using fear or force. You face robbery and burglary charges if:

  • You enter another person’s building
  • When inside, you use fear, intimidation, or force to obtain property from the building’s occupant(s)
  • You had the motive of your actions when entering the building

The difference between burglary and robbery is that robbery involves violent threats and the actual taking of property. Speaking of burglary, you are not required to use fear or force and could be committed by just the motive to commit a felony or theft. In California, robbery is a felony crime as well as a strike offense, and possible punishment can range from 2 to 9 years depending on whether it is first or second degree robbery

Forgery, California Penal Code Section 470 PC

Per California Penal Code Section 470, forgery happens when you knowingly alter, create, or use a written document with the motive to defraud. The majority think that burgling involves breaking into someone else’s property to steal.  But when you enter a store or bank by creating a forged check, you face forgery charges. In California, forgery is a wobbler offense.

Possession of Burglary Tools, Penal Code 466 PC

California Penal Code Section 466 prohibits you from possessing tools with the motive of using them to commit felony burglary. Also, the statute makes it an offense to make or alter a key without permission of the person who oversees the building that the key opens. These tools include but are not limited to:

  • Pliers
  • Screwdrivers
  • Slim jims
  • Crowbars

If the police arrest you while committing burglary or just after committing burglary, and you happen to have these tools on your person, you could face both California Penal Code 466 and 459 charges. In California, a PC 466 violation is a misdemeanor and draws up to a six-month jail sentence.

Find a Santa Ana Criminal Defense Lawyer Near Me

In California, burglary is a serious crime, and you need a reputable attorney to make sure you are represented in court. At Darwish Law, we fight for the rights of defendants facing criminal charges in Santa Ana, California. Call us today at  714-887-4810 for a free case evaluation from a competent criminal defense lawyer with many years of experience.